*fn1,The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:,Deborah A. Persico, with whom Joseph A. Virgilio was on the brief, for appellant. Katherine M. Kelly, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III and Magdalena A. Acevedo, Assistant United States Attorneys, were on the brief, for appellee.,DAVID FLORES, APPELLANT, v. UNITED STATES, APPELLEE." />

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David Flores, Appellant v. United States

December 22, 2011 *fn1


Appeal from the Superior Court of the District of Columbia Criminal Division (CF2-21590-08) (Hon. Jennifer Anderson, Trial Judge)

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:

Argued November 30, 2011

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and NEWMAN, Senior Judge.

Following a jury trial, appellant David Flores challenges his conviction of assault with significant bodily injury.*fn2 Appellant challenges the trial court's jury instruction, made in response to a juror's note, that if the jury determined that appellant acted recklessly to cause the assault with significant bodily injury, the jury was not required to find that appellant disregarded the specific risk of injury towards the complainant.*fn3

We affirm.


Complainant Hilbert Laray Evans III began his shift as a security guard at the Odalis Restaurant in Northwest Washington, D.C., at 8:00 p.m. Appellant and his three companions were intoxicated and aggressive towards the waitresses and other restaurant patrons. The restaurant's owner, watching appellant with the aid of surveillance cameras, informed Evans that "these guys have to go." When the owner of the restaurant approached appellant and asked him to leave, Evans saw appellant reach into his pocket and produce a black-handled switchblade, with which he made a stabbing motion towards the restaurant owner. Evans stepped in and pushed the owner aside, and attempted to apprehend appellant. Appellant then stabbed Evans twice -- first making contact with Evans' bullet proof vest, and then stabbing Evans in the abdomen underneath the vest. Evans testified that he then placed appellant in a "choke hold," while appellant made efforts to "cut back" towards Evans, with the knife in his right hand, swinging it over his left shoulder. Appellant contends that he was simply trying to dispose of the knife to avoid an incident, since he was still on probation for a previous crime, and was caught off guard when Evans placed him in a choke hold; in desperation, appellant pushed backwards against Evans with the open knife in his hand.*fn4

Evans led appellant outside, still in a choke hold, and removed the knife from appellant's hand. Appellant was placed under arrest and Evans left the scene to go to the hospital, where he received eight to ten stitches and a tetanus shot in treatment for his stab wound.

The indictment charged appellant with "unlawfully assault[ing] Hilbert Evans and intentionally, knowingly, and recklessly caus[ing] significant bodily injury to Hilbert Evans," pursuant to D.C. Code § 22-404 (a)(2). At the close of trial, the jury was instructed on the elements of D.C. Code § 22-404 (a)(2), including an instruction that the intent element of the statute could be satisfied where appellant "was aware of and disregarded the risk of significant bodily injury that his conduct created." During deliberations, the jury requested clarification of this instruction, asking whether "it was intentional by the authors of the law to omit reference to the victim" and whether "'to Evans' should appear after the words significant bodily injury." The court responded to the jury in writing, stating that D.C. Code § 22-404 (a)(2) "does not mean that the risk of injury must be to Evans," and explained to counsel that "a jury could easily say we don't know really what [appellant] was thinking but at a minimum . . . it was reckless." Defense counsel made no objection. The jury found appellant guilty on all counts. This appeal followed.


We review for plain error a challenge to a supplemental jury instruction raised for the first time on appeal. Trapps v. United States, 887 A.2d 484, 488-89 (D.C. 2005). Where no objection was made in the trial court, it is rare that a challenge to a jury instruction will justify reversal of a conviction. Lopez v. United States, 801 A.2d 39, 48 (D.C. 2002). Appellant challenges the supplemental jury instruction, claiming that the trial court erred as a matter of law, misinterpreting both the plain language and legislative history of the assault with significant bodily injury statute.*fn5 We are unpersuaded by appellant's argument and find no such plain error here.*fn6

The language of the statute, D.C. Code § 22-404 (a)(2), is plain and we need not look to its legislative history to find that the trial court's instruction was reasonable. Hood v. United States, 28 A.3d 553, 559 (D.C. 2011) ("[I]f the plain meaning of the statutory language is clear and unambiguous and will not produce an absurd result, we will look no further." (citation and internal quotation marks omitted)). Further, even where terms within the statute remain undefined, "we presumptively accord them their ordinary meaning in common usage, taking into account the context in which they are employed." Id. "Recklessness" by nature involves a lack of directed action, and is unambiguous on its face.*fn7 See In re Anderson, 778 A.2d 330, 339 (D.C. 2001) (recklessness is defined by one's "conscious indifference to the consequences of his behavior . . . ."); Reed v. United States, 584 A.2d 585, 590 (D.C. 1990) (recklessness entails a "lack of awareness or failure to perceive the risk of injury from a course of conduct under circumstances in which the actor should have been aware of the risk." (citation and internal quotation marks omitted)); BLACK'S LAW DICTIONARY 1385 (9th ed. 2009) (recklessness is defined as a "state of mind in which a person does not care about the consequences of his or her actions"). As demonstrated in Anderson and Reed, the state of mind to which "recklessness" refers is commonly understood to lack an intended outcome or clearly identified result. See Anderson, supra, 778 A.2d at 339; Reed, supra, 584 A.2d at 590. Therefore, we assign the mens rea element of recklessness in D.C. Code § 22-404 (a)(2) its ordinary meaning, consistently defined as conduct without direction or target. Moreover, on the facts of the case, Evans was clearly within an area affected by appellant's reckless conduct. We find no plain error in the trial judge's supplemental instruction that the recklessness required for assault with significant injury need not be specifically directed at the injured party.*fn8 For the foregoing reasons, we affirm appellant's conviction.

So ...

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